Brian Hutchcroft-Darling v. Justin Boecker Defendant Jerry A. Vander Sanden

United States Court of Appeals
For the Eighth Circuit
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No. 22-2118
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Brian Hutchcroft-Darling
lllllllllllllllllllllPlaintiff - Appellant
v.
Justin Boecker
lllllllllllllllllllllDefendant
Jerry A. Vander Sanden
lllllllllllllllllllllDefendant - Appellee
City of Cedar Rapids
lllllllllllllllllllllDefendant
Linn County, Iowa
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 13, 2023
Filed: June 26, 2023
[Unpublished]
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Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.
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PER CURIAM.
Officer Justin Boecker filed a police report alleging that five witnesses had
seen Brian Hutchcroft-Darling stealing his tenant’s washer and dryer from a building
that he rents out. Jerry Vander Sanden, the local prosecutor, filed charges against
Hutchcroft-Darling based on the complaint. The charges were later dropped after no
witnesses supported Officer Boecker’s allegations.
Hutchcroft-Darling then brought suit under § 1983 against four entities, two
of which are relevant to this appeal: Vander Sanden, who Hutchcroft-Darling alleges
recklessly swore to the complaint, and Linn County, Iowa (collectively,
“defendants”).1 The district court2 granted summary judgment in favor of the
defendants, holding that Vander Sanden was protected by absolute prosecutorial
immunity and, in the alternative, qualified immunity. It also held that Hutchcroft-
Darling’s claims against Linn County failed as a matter of law. Hutchcroft-Darling
appeals. We affirm.
1Hutchcroft-Darling settled with Officer Boecker, who he alleged fabricated
witness testimony, and does not appeal the grant of summary judgment in favor of the
City of Cedar Rapids, Iowa.
2The Honorable Leonard T. Strand, United States District Judge for the
Northern District of Iowa.
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I. Claims Against Vander Sanden
In his opening brief, Hutchcroft-Darling argues only that Vander Sanden is not
entitled to absolute prosecutorial immunity. See generally Appellant’s Br. (containing
zero instances of the word “qualified”). In response, the defendants cite the district
court’s alternative holding. See Hutchcroft-Darling v. Boecker, No. C19-0011-LTS,
2020 WL 2776498, at *6 n.5 (N.D. Iowa May 28, 2020) (“Even if Vander Sanden was
not entitled to absolute immunity, I find he would be entitled to qualified immunity
for the reasons stated by defendants.”). They argue that Hutchcroft-Darling waived
his challenge to the court’s alternative holding of qualified immunity by failing to
challenge it in his opening brief. Appellee’s Br. at 8–9 (citing Vallejo v. Amgen, Inc.,
903 F.3d 733, 749 n.12 (8th Cir. 2018)). Hutchcroft-Darling replies that the waiver
argument is a “red herring,” Appellant’s Reply at 5, and that he “directly addresse[d]
and dispute[d] the only basis for a factual or legal finding of qualified immunity by
arguing that Vander Sanden was the complaining witness and that he cannot simply
approve police reports in swearing out a complaint,” id. at 6.
“Absent some reason for failing to raise an argument in an opening brief, this
court will not consider an argument first raised in a reply brief.” United States v.
Brown, 108 F.3d 863, 867 (8th Cir. 1997). Hutchcroft-Darling suggests that because
the same facts are relevant to both forms of immunity, legal argumentation on one is
immaterial, but this is inconsistent with precedent. See Liscomb v. Boyce, 954 F.3d
1151, 1154 (8th Cir. 2020) (holding First Amendment retaliation claim forfeited due
to lack of argumentation in opening brief despite similar factual basis to separate
claim considered by the court); Rogers v. King, 885 F.3d 1118, 1122 n.2 (8th Cir.
2018) (holding similarly in an excessive force case where state tort claims of assault
and battery were not properly argued).
Indeed, Hutchcroft-Darling’s reply brief obscures key distinctions between the
two immunity doctrines. See Greenman v. Jessen, 787 F.3d 882, 890 (8th Cir. 2015)
(denying prosecutorial immunity but granting qualified immunity); compare Malley
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v. Briggs, 475 U.S. 335, 341 (1986) (“[Q]ualified immunity . . . provides ample
protection to all but the plainly incompetent or those who knowingly violate the
law.”), with Imbler v. Pachtman, 424 U.S. 409, 427 (1976) (“To be sure,
[prosecutorial] immunity does leave the genuinely wronged defendant without civil
redress against a prosecutor whose malicious or dishonest action deprives him of
liberty.”).
We decline to consider Hutchcroft-Darling’s unargued challenge to the district
court’s finding of qualified immunity. Because we affirm the district court’s grant of
qualified immunity to Vander Sanden, we need not consider whether he is also
entitled to prosecutorial immunity.
II. Claims Against Linn County
Hutchcroft-Darling’s claims against Linn County are premised on Vander
Sanden’s actions as the supervisory law enforcement officer of Linn County.
Hutchcroft-Darling argues that Linn County’s policy of having the county prosecutor
swear to the complaint engenders municipal liability. We agree that the record reflects
that this policy is sufficiently established to engender liability. See Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 690–95 (1978). However, “[w]here a
plaintiff claims that the municipality has not directly inflicted an injury, but
nonetheless has caused an employee to do so, rigorous standards of culpability and
causation must be applied to ensure that the municipality is not held liable solely for
the actions of its employee.” Bd. of the Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 405 (1997); see also Russell v. Hennepin Cnty., 420 F.3d 841, 846 (8th Cir.
2005) (“Before a municipality can be held liable, however, there must be an
unconstitutional act by a municipal employee.”).
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The district court found that
Darling has presented no evidence from which a reasonable juror could
conclude that Vander Sanden should not have believed the information
Boecker provided to him or that Vander Sanden had reason to believe
Boecker was not providing truthful information in his police reports.
Indeed, it is undisputed that the only communication between Boecker
and Vander Sanden prior to the charges being filed was the submission
of the police reports to the County Attorney’s office.
Hutchcroft-Darling, 2020 WL 2776498, at *8; see also id. at *7–8 (thoroughly
analyzing the facts). On appeal, Hutchcroft-Darling presents no reason to conclude
that the policy rather than the falseness or recklessness of the allegations was the
source of his harm. See Appellant’s Br. at 26–27 (discussing only Linn County’s
policy requiring Vander Sanden to swear to the complaint and not the district court’s
factual findings). We affirm the district court’s grant of summary judgment in favor
of Linn County.
III. Conclusion
We affirm.
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